Submitted by: Himanshu Malik

L.L.M (1st Sem)

Submitted to: Dr. Amrender Kumar

Asst. Professor
Course: Legal and Social Science Research Methods
Research Proposal
Topic: Examining the Role of Sole Permanent International Criminal Court in
this Intricately Globalized World

Submitted by: Himanshu Malik

LLM (1st Sem)
Submitted to: Dr. Amrender Kumar
Professor (Law)

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TITLE: Examining The Role of Sole Permanent International Criminal Court in this
Intricately Globalized World

I. Introduction

Recent ‘Arrest Warrant, by the International Criminal Court (ICC) against Russian leader
Vladimir Putin has brought to spotlight International Criminal Law is in its nascent stage and
still developing, unlike any national or state(s) criminal system it does not have any binding
geographical jurisdiction or governed subjects by virtue of it being enacted by state
legislature. Similarly, when we talk about International Criminal Court, it cannot be
compared to any national court in terms of: jurisdiction, binding authority or enforcement
mechanism. What the international community has done so far in this regard needs to be
looked upon, what is needed to be done to facilitate more civilised world?

When we talk about globalisation and ‘global village’, inter-dependence of ‘global

community’, it becomes imperative for the community to strengthen the law enforcement and
judicial mechanism so as to safeguard the interest of society and maintain the rule of law. In
any national jurisdiction we have state & national courts to safeguard both the above-
mentioned principles, this in turn makes the country more civilised, harmonious and
prosperous. What if the national courts are not able to prosecute the criminal due to fear or
favour and become hostile, will that not disturb the rule of law. Since the ultimate goal of
International and National (Municipal) law is same, there has to be a structured mechanism,
unhindered by political consideration. Which will work and come to rescue of the
‘community’ whenever the domestic jurisdiction fails to fulfil the aspiration of ‘global
community’ of a peaceful and rule abiding globe. Because when a crime is committed in any
part of the world and is not prosecuted, it will set a precedent and will encourage more wrong
doing, which is not is interest of humanity. Therefore, we have this concept of ‘crime against
humanity’, which is one of the most heinous crimes and will never go unpunished. For this
very purpose ICC (International Criminal Court) was constituted, to act as a recourse when
the domestic machinery fails. But like we already discussed it cannot be like any other
national court, likewise same set of rules cannot apply to it. Its almost 2 decades now since
the court was established, has it fulfilled the objective for which it was constituted, what has
been the achievements and limitations, the participation of international community. These

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facts need assessment and after 2 decades, do we really need any kind of overhaul of the
current mechanism as advocated by some experts1, all these issues need detailed examination.

II. Statement of Problem

The growing incidences of aggression, human rights violation, atrocities at behest of ruthless
dictators and leaders points towards the weak International Criminal Law, that further erodes
the efficacy of International Criminal Court. Despite being one-of-its-kind only Permanent
Criminal Court, the Court has failed to live up to the expectations. This situation is
exacerbated by Nations, which either are not party to the Rome Statute or even after being
member intentionally do not comply with the Court’s rulings. Such situation makes the Court
a mere hollow institutional building located at Hague that is burden on financial resources.
Thus, the research is needed to assess the functioning of the court, ways to reform it and thus
strengthening the overall international criminal jurisprudence.

III. Literature Review

International institutions are plagued with too many expectations and too little power. One
striking example is the International Criminal Court. Its malcontents criticize the Court as an
ineffective player in achieving international peace and security 2, largely because of its
perceived inability to control rogue individual behaviour and this issue has been discussed at
length by various authors, researchers 3. Being the sole custodian of International Law in
Criminal Justice realm, right from the interpretation of law to adequate punishment for
deterrence, the effectiveness of the International Court (ICC) is imperative for global survival
and progress in the 21st century. To Maintain peace and Security, which is the primary goal
of UN and the purpose for which ICC was constituted, seems strenuous for the Court with its
limited power and scope which has been criticised by researchers on various occasions.
Unfortunately, after over two decades in existence, the Court’s influence is declining more
than before. Many scholars argue that given the powers and current manner in which the
Court functions, it becomes problematic to touch upon the grey areas of International Law,
thereby hindering the evolution of it. Countering this argument, the other school proposes to
1
Stef Belk, discussed the issue in Washington Post, published on 20-02-2019, available at
https://www.washingtonpost.com/opinions/2019/12/02/international-criminal-court-must-do-better-reforms-are-
urgently-needed/
2
A. von Bogdandy and R. Wolfrum (eds.), “The ICC and its Jurisdiction: myths, misconceptions and realities”,
Vol. 7, (2003), Max Planck Yearbook of United Nations Law, Pp 409-512.
3
Refer to books and articles mentioned in the research paper; also see International Law by Malcolm N. Shaw.

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the recourse to the ‘UN-isation’ of the Court 4, but it also has its limitations and surprisingly
till today only one such award is backed by UN resolution, what were the implications is a
different question. The question which is to be dealt is whether truly ICC is custodian of
International Criminal law or not, if yes, then does it have ample powers and domain to
upheld the same. This paper will discuss, why it becomes important to revitalize the influence
and effectiveness of the Court, ways to revive and challenges faced, in doing so.

BOOKS

1. International law by Malcolm N. Shaw5

The book is an authoritative text on the international law. The book gives us the idea
of the working of the International Criminal Court. The researcher had referred the
book for the understanding of legal provisions involved therein in the constitution and
origin of International Criminal Court

2. Principles of International Criminal Law by Florian Jessberger and Gerhard Werle6

This book puts before us the study of the coexistence of crime and geopolitics
processes before us for the first time. In the book, Jessberger had used the framework
of fundamental rules of international criminal jurisprudence and tend to delve into
the question of ICC’s capacity to uphold the same or not.

3. An Introduction to the International Criminal Court by William Schabas7

This book is another such authoritative text on the core statute, rules and principles
associated with the functioning of the court, the mechanism of selection of judges, the
process of appointment of ‘office of prosecutor’, the role of Assembly of parties and
the modus operandi of deciding the case thereof. This text has immensely helped the
researcher in developing a basic understanding about the functioning of the court also,
giving an insight about the structure of the court existing as of date.

4
Galand, Alexandre Skander. UN Security Council Referrals to the International Criminal Court: Legal Nature,
Effects and Limits. Brill, 2019. JSTOR, http://www.jstor.org/stable/10.1163/j.ctv2gjwwkv. Accessed 27 Mar.
2023.
5
Malcolm N. Shaw, International law, (6th ed, US, Cambridge University press 2008), pp. 652-658.
6
Werle Gerhard and Florian Jessberger. Principles of International Criminal Law. 3rd edition Third ed. Oxford
University Press 2014.
7
Schabas, William A. An Introduction to the International Criminal Court. 5th ed., Cambridge University Press,
2017.

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 4. The ICC and its Jurisdiction: myths, misconceptions and realities by Markus Wagner8
This is one of first book which makes people (concerned with international affairs)
aware about the deadly nexus between geopolitics and administration of criminal
justice and how it had threatened the very bases of the world order by vengeful
politics and impartial application of law on the subject. The author highlights that the
ICC is not at fault but rather seemed to be groped in the Dark about how the rot of
geopolitics that had set in international criminal law functioning. The assessment by
the author seems corroborated with the recent issue of arrest warrant against Russian
president Vladimir Putin.

5. UN Security Council Referrals to the International Criminal Court: Legal Nature,

Effects and Limits by Galand Alexandre Skander9.
The book is basically a collection of essays, collected by the author to highlight and
assess the functioning of the court after almost a decade and half of its inception, its
association with the United Nation. The author of this book has helped the researcher
of this paper in qualitatively review the impact, effect, limitation of the court without
the direct association with the UN and vice versa what would be the impacts if the
court is placed under the domain of UN.

ARTICLE

1. Reforming the International Criminal Court: "Lean In" or "Leave", by Leila Nadya
Sadat10
The author in this article studies the role of court and global community at large in
securing a peaceful world order. This role is discussed in the context of various
powers and unique role entrusted to the court and the author analysed the role of this
court with the help of publicly available data of cases decided, prosecution instituted,
results of the prosecutions. The author also gives give some recommendations for
8
A. von Bogdandy and R. Wolfrum (eds.), “The ICC and its Jurisdiction: myths, misconceptions and realities”,
Vol. 7, (2003), Max Planck Yearbook of United Nations Law, Pp 409-512.
9
Skander, Galand A., “UN Security Council Referrals to the International Criminal Court: Legal Nature,
Effects and Limits”, Vol. 5, Leiden Studies on the Frontiers of International Law, September 2018.
10
Leila Nadya Sadat, Reforming the International Criminal Court: "Lean In" or "Leave", 62 Wash. U. J. L. &
Pol’y 051 (2020)

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 improving the situation along with change in role of civil society and the global
community, because as per the author, the ICC with is current mandate and power is
nothing but a ‘Toothless Tiger’

2. “Nonstate armed actors and illicit economies in 2022” by Federica Saini11

This news article is a classical case study of the expanding horizons of crime against
humanity, the role of non-state actors, the support of state or the ‘leadership’ of the
state in pursuing their goal, but due to no explicit mechanism to prosecute the
organizations and the leaders thereof the court with its limited powers remain elusive.
However, with changing dynamics of the world and concerted efforts against crime
and terrorism, the author is pragmatic that this trajectory will also enhance the role of
ICC, when issue of nationality of the terrorists or issue of territorial jurisdiction comes
up.

REPORTS
1. Office of the Prosecutor, International Criminal Court “[Draft] Strategic Plan for
2023-2025” by Human Rights Watch
This is one of the most systematic and most authoritative draft prepared by any
independent international organisation, this report has also criticised the strategy
proposed by the Office of Prosecutor by countering the claims made in the draft with
the help of past records of the court concerning the appointment, consideration,
adjudication of any matter. The fact-finding approach of the report based on empirical
data is indeed very insightful for the topic.

2. Performance based Data of ICC by Council on Foreign Affairs12

This is a detailed report on the year wise, nation wise, regional, national, continental
based classification of the cases decided by ICC so far, the report has helped the
researcher to draw the comparison of the ICC with its predecessors. This report has
also helped the researcher in testifying and corroborating the claims made by different
authors on the imputed functioning of the court
11
Saini, F. “Non-State armed actors and support from the Multinational Companies”, Brookings News
Platform, (2022, February 8). Retrieved March 27, 2023, from https://www.brookings.edu/blog/order-from-
chaos/2022/02/08/russias-wagner-group-in-africa-influence-commercial-concessions-rights-violations-and-
counterinsurgency-failure/
12
Available on https://www.cfr.org/backgrounder/role-international-criminal-court

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Literature Gaps Found: Despite plethora of work Available on working of the ICC, various
renowned authors cited above have examined the functioning of the court in detail, the
literature cited above has examined the court, its structure, its functioning properly. However,
they missed crucial aspect of describing factors that limit the functioning of the court as well
as the mechanism currently put in place to deal with one of the most precarious situations
found in the world. Further, the available literature apart from criticising the functioning of
the court fails to provide any concrete solution for strengthening the arms of the court,
therefore, this gap is tried to be filled under this research paper.

IV. Objective of The Study

The broad objective of the study is to assess the role of ICC in the changing world with new
developments and with that increasing dispute. The paper also seeks to provide the context in
which the court was introduced, its working and challenges is more dynamic world, the broad
question to be addressed are:

1. The researcher aims to study the manifold increase in the war crimes, aggression,
border disputes escalating to civil wars13, which are propelled by so called ‘mass
leaders’ and the legal framework to deal with the act of propelling war crimes in
international criminal jurisprudence.
2. To understand the standing legal framework adopted at Rome Conference,
culminating into Rome Statute, 199814, that established world’s first permanent
International Criminal Court.
3. To understand the working of the court (ICC), the procedure, the complexities and the
hinderances faced by the court, so far.
4. At last, to understand various reforms suggested by the member states, non-member
states or by international organisations like United Nations Interregional Crime and
Justice Research Institute (UNICJRI). Post that, the researcher will try to draw an
analogy among all and propose a mutually acceptable reforms to transform ICC in
more pragmatic manner.

13
Tigray dispute in Ethiopia in 2022, available at https://www.hrw.org/tag/tigray-conflict
14
Rome Statute was adopted in 1998 and was later enforced in the year 2002.

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 V. Research Questions
The research study encompasses an analysis of current functioning & jurisdiction regime,
outlining the need and objective of the reforms in the present structure. The powers have been
discussed along with a critical analysis regarding its relationship with the United Nations &
other sovereign states and autonomy of the same. The research suggests some measures
which can be incorporated to make the ICC more effective and thereby strengthening the
International Law and world order. Broad research questions are as follows:

1. What actions amount to war crimes, crime against humanity? What will be the
liability of the individual for the same? Have these acts been defined somewhere?
What is the existing framework?
2. What will be the role of ICC in prosecuting the individuals or groups for these crimes
committed? What are the acts falling under its jurisdiction?
3. What is the extend of jurisdiction? What is the existing legal mechanism of the court?
4. Has the role been effective so far? What are the limitations of the court? What are the
effective measures the court and international communities have taken so far/
5. What kinds of legal frameworks are suggested and what kind of framework is needed
to make the court more effective?

VI. Hypothesis
The researcher assumes that objectives with which ICC was constituted was to prosecute
individuals of war crimes irrespective of their nationality. However, it seems to have been
half-heartedly attempted by restricting operating area of it and also by ineffective constitution
of cases as the court is outside the ambit of the United Nations. Now the hunch is, will this
court perfrom better if placed within the fold of UN same shall be examined under research.

VII. Research Methodology

The research on this topic has been conducted by adopting doctrinal method of research. The
primary data include various statutes relating to ICJ and the UN charter, the rules of court.
The secondary data has also been collected, the sources being various books, journals,
articles, online sources, etc. Ultimately, the researcher will try to arrive at the conclusion as
per the objectives of the research.

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Style of Writing: The style of writing is descriptive and analytical as all the relevant
developments have been be outlined, discussed and analysed.

Data analysis and interpretation – Manner of Analysis

The author in this study has followed the qualitative method of analysis and started with
analysis of books dealing with historical background of problem of ineffective functioning of
the International Criminal Court and then also understanding the rationale of having an
International Criminal Court through the lens of International Criminal law jurisprudence.
Then the author will move towards the legal developments that had taken place since
inception of the court. The statutes and articles referred above provide the content to the
author to write about the role of the Court in administration of justice and the effective role
played so far. The author tried to follow a systematic and impartial approach throughout the
data analysis and interpretation summarising the observations to find answers for the research
problems

VIII. Research Design

The primary objective of the research will outline our design of research, that will be around
the composition of the Court at present. The empirical data collected will help us in
determine that faith of nations as well as individuals in the Criminal Justice system that is
propelled by this court. In addition to that, the matter further collected will help us in
answering certain nuanced question as to:

o The extent of awareness about this ICC in legal fraternity as well as in laymen
society
o What is the Role of UN with respect to this Court.
o On basis of data analyzing the functioning of the court with respect to its
predecessors
o Whether the apprehensions of some developing nations as to partiality by
court holds any value, when looked at data and evidences
o Further how the functioning of the court can be strengthened by bringing it
under the fold of United Nations

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 IX. Tentative Chapterisation

The entire research will run into 5 broad chapters and sub-chapters therein:

Introduction···········································································································································································
In this the author will discussing the issues pertaining to the functioning of the court, how it is
formulated, what was the purpose behind it, how it has fared on the expectations and what are the
expectations and lastly the Research will be around reforming this system to make it more effective.
1. Literature Review······························································································································································
Under this the author will be analyzing relevant literature, the gaps thereof and finally try to delve
into the discussions of making our literature more enriched by contributing whatever limited
knowledge the researcher has.
1.1 Objective of The Study···················································································································································
The broad objective of the study is to assess the role of ICC in the changing world with new
developments and with that increasing dispute. The paper also seeks to provide the context in
which the court was introduced, its working and challenges is more dynamic world
1.2 Research Question·························································································································································
The research study encompasses an analysis of current functioning & jurisdiction regime,
outlining the need and objective of the reforms in the present structure. The powers have been
discussed along with a critical analysis regarding its relationship with the United Nations &
other sovereign states and autonomy of the same
1.3 Hypothesis·····································································································································································
The gist of the hypothesis is that, will this court perfrom better if placed within the fold of
UN same shall be examined under research.
1.4Research Methodology···················································································································································
The research on this topic has been conducted by adopting doctrinal method of research,
using primary and secondary data, also the research will be descriptive and analytical
2. Current Model···································································································································································
This chapter will be looking at the current model of the court its various components and the roles
thereof, also touching upon the process of formulation of various important offices of the court the
procedure thereof, etc.
2.1 Composition····························································································································································
Role of Prosecutor················································································································································
Role of Chambers·················································································································································
Election of judges·················································································································································
2.2 Jurisdiction······························································································································································
What types of crimes are prosecuted·····················································································································
2.3 Enforcement Mechanism········································································································································

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3. Limitations of present Code as well as Court·····················································································································
This chapter will be looking at the flawed jurisdiction currently accorded to the court and how this
has curtailed the court from exercising its primary function of prosecuting war criminals and
maintaining peaceful world order
Lack of jurisdiction························································································································································
3.1 Relationship with UN····················································································································································
Excessive Control of UNSC············································································································································
Investigation·································································································································································
4. Scope of Reforms·······························································································································································
This Chapter will be looking at the gaps that the researcher has found over the course of research
and the proposed changes which he feels will strengthen the mechanism
Proposed changes:························································································································································
5. Conclusion·········································································································································································
This is the last chapter where the researcher will either prove or disprove the hypothesis and look
into the pragmatic future that awaits this noble institution if reforms pursued properly
Bibliography····························································································································································

Bibliography

BOOKS & ARTICLES

 Florian Jessberger and Gerhard Werle, Principles of International Criminal Law by

(Oxford University Press, London, 1st edn., 2004)

 William Schabas, An Introduction to the International Criminal Court (Cambridge

University Press, Cambridge, 2nd edn., 2006)

 A. von Bogdandy and R. Wolfrum (eds.), The ICC and its Jurisdiction: myths,
misconceptions and realities, (Cambridge University Press, Cambridge, Vol. 7, 2003).

 Skander, Galand A., UN Security Council Referrals to the International Criminal Court:
Legal Nature, Effects and Limits, (Leiden Studies on the Frontiers of International Law,
Netherlands, Vol. 5, 2018)

ARTICLES

 Leila Nadya Sadat, “Reforming the International Criminal Court: Lean In or Leave”, 62
Wash. U. J. L. & Pol’y 051 (2020)
 Federica Saini “Non-State armed actors and support from the Multinational Companies”,
Brookings News Platform, (Feb. 8, 2022)

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 REPORTS

 Office of the Prosecutor, International Criminal Court and Human Rights Watch
“[Draft] Strategic Plan for 2023-2025”, (April 2022)

 Coalition for ICC organization, “Documenting International Crimes and Human Rights
Violations for Criminal Accountability Purposes: Guidelines for Civil Society
Organisations” (September 2021)

 Maria Elena Vignoli, “Support Builds for ICC Ukraine Investigation” (November 2020)

STATUTE & LEGISLATION

 UN Charter, 1945
 Rome Statute of International Criminal Court, 1998
 Atlantic Council Declaration, 2019
 Documents of Assembly of Parties (ASP)
 Regulations of the Court available at
https://icc-es.org/evaluation-report-program/reports-directory/

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